Citation Nr: 0206461
Decision Date: 06/18/02 Archive Date: 06/27/02
DOCKET NO. 99-05 089 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for eligibility for prisoner of war (POW)
status.
ATTORNEY FOR THE BOARD
Eric S. Leboff, Associate Counsel
INTRODUCTION
The veteran had certified service with the recognized
guerrillas from February 1944 to August 1945. No period as a
POW was certified by the service department.
Initially, the Board of Veterans' Appeals (Board) notes that
the veteran had previously sought service connection for
several disabilities in a claim filed in September 1993.
This claim was denied by the Board in August 1996, and the
Board's denial was affirmed by the United States Court of
Appeals for Veterans Claims (previously known as the Unites
States Court of Veterans Appeals prior to March 1, 1999,
hereafter "the Court"), in a Memorandum Decision, dated in
February 1998. Thereafter, although the veteran's alleged
POW status was addressed in the Board's August 1996 decision,
and the Board made an expressed finding that the veteran was
not a POW, the regional office (RO) considered the instant
claim for eligibility as a POW on a de novo basis. As will
be shown more fully below, the Board finds that the previous
1996 finding as to the lack of POW status constituted a final
denial as to this issue. Consequently, the Board further
finds that it is required to consider the issue on appeal on
a new and material basis pursuant to Barnett v. Brown, 83
F.3d 1380 (Fed.Cir. 1996).
The claim at issue came before the Board again in June 2000,
at which time it was determined that new and material
evidence sufficient had not been submitted to reopen the
veteran's claim of eligibility for POW status. In a June
2001 Order, the Court vacated the June 1999 Board decision,
and remanded the matter back to the Board for development
consistent with the Appellee's Motion for Remand and for a
Stay of Proceedings (Appellee's Motion).
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained by the RO.
2. An August 1996 Board decision expressly determined that
the veteran was not a POW, and this decision was affirmed by
the Court in February 1998.
3. The evidence submitted since the August 1996 Board
decision is either cumulative and redundant, or does not bear
directly and substantially upon the issue at hand, and is not
so significant that it must be considered in order to fairly
decide the merits of the claim.
CONCLUSION OF LAW
The August 1996 Board decision which determined that the
veteran was not a POW is final; new and material evidence has
not been received to reopen the claim. 38 U.S.C.A. §§ 5108,
7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104, 3.156
(2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initial matters: duty to notify/assist
As a preliminary matter, the Board notes that while this
appeal was pending, legislation was passed that enhances VA's
duties to notify a claimant regarding the evidence needed to
substantiate a claim and to assist a claimant in the
development of a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A
(West Supp. 2001). The change in the law is applicable to
all claims filed on or after the date of enactment of the
Veterans Claims Assistance Act of 2000 ("VCAA"), or filed
before the date of enactment of the VCAA and which are not
final as of that date. To implement the provisions of the
law, VA promulgated regulations published at 66 Fed. Reg.
45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, and 3.326(a)).
More recently, the United States Court of Appeals for the
Federal Circuit decided Bernklau v. Principi, No. 00-7122
(Fed. Cir. May 20, 2002); See also Dyment v. Principi, No.
00-7075 (Fed. Cir. April 24, 2002). In Bernklau, the Federal
Circuit held that Section 3A of the VCAA (covering the duty
to notify and duty to assist provisions of the VCAA) was not
retroactively applicable to decisions of the Board entered
before the effective date of the VCAA (Nov. 9, 2000). In
reaching this determination, the Federal Circuit appears to
reason that the VCAA may not apply to claims or appeals
pending on the date of enactment of the VCAA. However, the
Federal Circuit stated that it was not reaching that
question. The Board notes that VAOPGCPREC 11-2000 (Nov. 27,
2000) appears to hold that the VCAA is retroactively
applicable to claims pending on the date of enactment.
Further, the regulations issued to implement the VCAA are to
be applicable to "any claim for benefits received by VA on
or after November 9, 2000, the VCAA's enactment date, as well
as to any claim filed before that date but not decided by VA
as of that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001).
Precedent opinions of the chief legal officer of the
Department and regulations of the Department are binding on
the Board. 38 U.S.C.A. § 7104(c) (West 1991). For purposes
of this determination, the Board will assume that the VCAA is
applicable to claims or appeals pending on the date of
enactment of the VCAA.
The Board observes that the VCAA, 38 U.S.C.A. § 5103A(f)
(West Supp. 2001) specifically notes that nothing in the Act
shall be construed to require the Secretary to reopen a claim
that has been disallowed except when new and material
evidence is presented or secured, as described in 38 U.S.C.A.
§ 5108. However, the new notice provisions of the VCAA do
apply to attempts to reopen claims and VA must notify the
claimant of any information or evidence not previously
provided to VA that is necessary to substantiate the claim.
VBA Fast Letter 01-02 (Jan. 9, 2001). Further, the
regulations implementing the VCAA amended the provisions of
38 C.F.R. § 3.156(a), and VA provided that the duties to
assist and notify the veteran, pursuant to 38 U.S.C. §§
5103(a) and 5103A were applicable to claims to reopen
previously denied issues. However, these amendments are
effective only on claims received on or after August 29,
2001, and are, thus, not relevant in the instant case. See
66 Fed. Reg. 45620-45632 (August 29, 2001). Therefore,
pursuant to the VCAA and Section 3.156(a) prior to the
amendment, the Board must consider whether the duty to notify
the veteran has been met. However, unless a determination
that new and material evidence has been submitted is made,
the duty to assist - as defined in the VCAA - is not for
application.
The Board finds that the claimant has been provided ample
notice. The Board's decision of August 1996 advised him of
the existing factual record and why the benefit could not be
granted on that record. Subsequently, the statement of the
case of January 1999 advised him of why the record continued
to fail to establish entitlement. The Board's prior decision
of June 2000 provided the claimant with notice of what would
constitute new and material evidence to reopen his claim and
why he evidence submitted in support of his application to
reopen did not constitute new and material evidence. There
is no allegation that there is any existing evidence that
would constitute new and material evidence that has not been
obtained.
The Board further notes that in a letter from the RO dated
July 1998, the veteran was instructed to submit any
documentation to confirm his POW status. The letter noted
that documents such as Philippine Red Cross records, a
Guarantor's receipt for released POWs, the Japanese Parole
Certificate for released POWs, or War Claims Commission
records might be helpful in establishing his claim.
Moreover, a second letter was sent to the veteran in October
1998 to remind him of the need to submit such evidence.
Finally, the January 1999 statement of the case gave notice
as to the information necessary to substantiate his claim of
eligibility for POW status. The veteran has failed to
produce such evidence. See Wood v. Derwinski, 1 Vet. App.
190, 193 (1991) (in which the Court held that "[t]he duty to
assist is not always a one-way street. If a veteran wishes
help, he cannot passively wait for it in those circumstances
where he may or should have information that is essential in
obtaining the putative evidence.") Therefore, no further
assistance to the veteran regarding notice and development is
required.
Moreover, the Board finds that while the VCAA was enacted
during the pendency of this appeal, and thus, has not been
considered by the RO, there is no prejudice to the veteran in
proceeding with this appeal, as the requirements for the VCAA
have already been met. See Bernard v. Brown, 4 Vet. App.
384, 394 (1993) (when the Board addresses a matter not
addressed by the RO, the Board must provide an adequate
statement of reasons and bases as to why there is no
prejudice to the veteran).
Relevant law and regulations
Where new and material evidence is presented or secured with
respect to a claim that has been finally disallowed, the
claim shall be reopened and reviewed. See 38 U.S.C.A.
§ 5108; 38 C.F.R. § 3.156. When a veteran seeks to reopen a
final decision, the first inquiry is whether the evidence
presented or secured since the last final disallowance of the
claim is "new and material." Under 38 C.F.R. § 3.156(a),
new and material evidence is defined as evidence not
previously submitted which bears directly and substantially
upon the specific matter under consideration, which is
neither cumulative nor redundant, and which by itself or in
connection with the evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a); see
also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The
Board notes that there has been a regulatory change with
respect to the definition of new and material evidence, which
applies prospectively to all claims made on or after August
29, 2001. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001)
(to be codified at 38 C.F.R. § 3.156(a)). As the veteran
filed his claim prior to this date, the earlier version of
the law remains applicable in this case.
When determining whether the claim should be reopened, the
credibility of the newly submitted evidence is presumed.
Justus v. Principi, 3 Vet. App. 510 (1992). In order for
evidence to be sufficient to reopen a previously disallowed
claim, it must be both new and material. If the evidence is
new, but not material, the inquiry ends and the claim cannot
be reopened. See Smith v. West, 12 Vet. App. 312, 314
(1999). If it is determined that new and material evidence
has been submitted, the claim must be reopened. VA may then
proceed to evaluate the merits of the claim on the basis of
all evidence of record, but only after ensuring that the duty
to assist the veteran in developing the facts necessary for
his claim has been satisfied. See Elkins v. West, 12 Vet.
App. 209 (1999), but see 38 U.S.C.A. § 5103A (West Supp.
2001)(eliminates the concept of a well-grounded claim).
A "veteran" is a person who served in the active military,
naval, or air service and who was discharged or released
under conditions other than dishonorable. 38 C.F.R. § 3.1(d)
(2001).
The term "former prisoner of war" means a person who, while
serving in the active military, naval or air service, was
forcibly detained or interned in the line of duty by an enemy
or foreign government, the agents of either, or a hostile
force. 38 C.F.R. § 3.1(y) (2001).
VA shall accept the findings of the appropriate service
department that a person was a prisoner of war during a
period of war unless a reasonable basis exists for
questioning it. Such findings shall be accepted only when
detention or internment is by an enemy government or its
agents. 38 C.F.R. § 3.1(y)(1) (2001).
For the purpose of establishing entitlement to pension,
compensation, dependency or indemnity compensation, or burial
benefits, VA may accept evidence submitted by a claimant or
sent directly to VA by a service department, such as a DD
Form 214, Certificate of Release or Discharge from Active
Duty, or original Certificate of Discharge, without
verification from the service department if the evidence
meets the following conditions:
(1) The evidence is a document issued by the service
department. A copy of an original document is acceptable if
the copy was issued by the service department or if the copy
was issued by a public custodian of records who certifies
that it is a true and exact copy of the document in the
custodian's custody; and
(2) The document contains needed information as to the
length, time and character of service; and
(3) In the opinion of VA, the document is genuine and the
information contained in it is accurate.
38 C.F.R. § 3.203(a).
Service department findings as to the fact of service with
the U.S. Armed Forces are made binding upon VA for purposes
of establishing entitlement to benefits. See Duro v.
Derwinski, 2 Vet. App. 530 (1992).
The evidence which must be considered in determining whether
there is a basis for reopening the claim as to eligibility
for POW status is that evidence added to the record since the
August 1996 rating decision, the last disposition in which
the claim was finally disallowed on any basis. See Evans v.
Brown, 9 Vet. App. 273, 285 (1996).
Analysis
The evidence of record at the time of the August 1996 rating
decision included certification of service by the service
department that did not indicate any POW service, and the
veteran did not offer any evidence which supported his
contention that he had POW service. Finding that the
veteran's claim of former POW status was not confirmed by the
service department, and that the veteran had failed to
respond to requests for additional information concerning his
claim, the Board determined that the veteran was not a POW.
Since the August 1996 Board decision, although the veteran
has again asserted that he was a POW, he has still not
offered evidence in support of his claim. The record
reflects that while the RO requested supporting evidence in
letters dated in July and October 1998, the veteran did not
provide any additional evidence.
In the January 1996 statement of the case, the RO did not set
forth the language of 38 C.F.R. § 3.156(a), and adjudicated
the claim on a de novo basis. However, the Board notes that
the RO and the veteran have identified the claim as seeking
reconsideration of the previous decision as to POW status,
and as was noted previously, the RO repeatedly requested that
the veteran provide supporting information in support of his
claim. Thus, the Board finds that since the RO essentially
adjudicated the case on a new and material basis, there is no
prejudice to the veteran if the Board's review in this matter
is also on a new and material basis. This is especially true
in light of the fact that to the extent the RO also or
appeared to review the case on a de novo basis, the RO
furnished a more expansive review than the veteran would have
otherwise been entitled. See Bernard v. Brown, 4 Vet. App.
384 (1993).
The Board has considered the contentions of the veteran since
the Board decision in August 1996, and finds that the veteran
has not supported those contentions with evidence to justify
the reopening of his claim for eligibility for POW status.
In view of the lack of certification of POW service by the
service department, the critical question in this case was
and remains whether the veteran has provided new and material
evidence which supports his allegations as to POW service.
The veteran's contentions received since the August 1996
decision, without additional supporting evidence, are not, by
themselves or in connection with the evidence previously
assembled, so significant that they must be considered in
order to fairly decide the merits of the claim. 38 C.F.R. §
3.156(a). Therefore, new and material evidence has not been
presented, and the claim must fail.
ORDER
New and material evidence not having been submitted,
reopening of the claim for eligibility for POW status is
denied.
Richard B. Frank
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.